Corporate trends / Performance record
‘Termination During Probation (Acceptance of Resignation Recommendation)’ Unfair Dismissal Case (Unfair Dismissal 215)
- Date2026/02/19 04:04
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[Case Information]
This case is a decision that was concluded by upholding the first-instance decision on the issue of “termination during probation (acceptance of resignation recommendation).”
Decision Committee: Central Labor Relations Commission 2025Buhae959 ○ ○ ○ Application for Re-examination for Remedy of Unfair Dismissal
2025.12.10 · Case Result: First-instance decision upheld
Key Issue Summary: (a)
1. Legal Implications
In this unfair dismissal case, the Labor Relations Commission dealt with issues arising from refusal of regular employment and acceptance of a recommendation to resign during a probationary period. It is a decision that helps in understanding the legal principles on probation and resignation as organized by Labor Law Firm Law&. The Central Labor Relations Commission focused its analysis on whether a probationary employment relationship had been established, and whether the refusal of regular employment at the expiry of the probationary period constituted a dismissal or a voluntary consensual resignation by the employee.
Ⅰ. Case Overview
The employee was hired under an employment contract that expressly stipulated a probationary period, and the employer conducted weekly performance evaluations during that period. As the end of the probationary period approached, the employer informed the employee that it would be difficult to extend the contract and recommended that the employee resign. The employee then handwrote signatures on a retirement-related undertaking and other documents and submitted them.
On the same day, the employer accepted the employee’s retirement documents and filed a report of loss of insured status under employment insurance. Thereafter, the employee filed an application with the Labor Relations Commission seeking a remedy, claiming that this constituted an unfair dismissal.
Ⅱ. Issues
The key issue in this case is:
“Where an employee working as a probationary employee signs a retirement undertaking at the end of the probationary period in accordance with the employer’s recommendation to resign, should this be viewed as an unfair dismissal resulting from the employer’s refusal to grant regular employment, or as a termination of the employment relationship by mutual agreement between the employee and the employer?”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case found that a probationary employment relationship had been established between the employee and the employer, given that the employment contract expressly stipulated a probationary period, that the employer conducted weekly performance evaluations of the employee during that period, and that there was no dispute between the parties as to the existence of a probationary employment relationship.
In addition, taking into account that the employer appears to have explained to the employee, after the expiry of the probationary period, that it would be difficult to extend the employment contract and recommended resignation; that the employee, in response, handwrote signatures on retirement-related undertakings and other documents and submitted them; and that the employer immediately accepted these documents and, on the same day, filed a report of loss of insured status under employment insurance, the panel concluded that the employee accepted the employer’s recommendation to resign and that the employment relationship was terminated by mutual agreement. Accordingly, it held that there was no separate dismissal (unfair dismissal by refusal to grant regular employment).
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, once an employment contract has been formed, even for probationary employment, refusal to grant regular employment in principle may constitute a dismissal, and if such refusal lacks just cause, the employee may seek a remedy for unfair dismissal. However, as in this case, where the employee, following the employer’s recommendation to resign, personally signs a retirement undertaking and the employer accepts the retirement on that basis, the Labor Relations Commission is highly likely to view this as a “mutual termination” and to deny the claim of unfair dismissal.
When you receive a recommendation to resign, you should avoid signing immediately and instead carefully consider whether your intention to resign is genuine, whether there is any coercion aimed at avoiding a dismissal, and whether you will be able to retract your decision later. It is advisable, where possible, to preserve a record of the circumstances of the recommendation (in writing, audio recording, etc.) and then consult with a professional.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, it is important to clearly set out in writing—such as in the employment contract, work rules, and probationary employment forms—the existence of a probationary employment contract, the length of the probationary period, and the evaluation method. As in this case, the more closely the contractual terms and actual operation (weekly evaluations) align, the more favorable it will be for recognition of a probationary employment relationship. However, if the employment relationship is terminated at the end of the probationary period simply by obtaining a resignation letter, the genuineness of the resignation, the presence of any duress, and whether it was intended to avoid a dismissal may later be contested. Therefore, it is necessary to retain objective evidence of the content and circumstances of the recommendation to resign and of the employee’s voluntary consent process.
Furthermore, even where the employer chooses to refuse regular employment during or at the end of the probationary period, it is helpful for preventing future disputes to verify whether the reasons are based on rational grounds related to the purpose of probation—such as the employee’s job suitability, competence, and attitude—and whether at least minimal procedures were followed to explain those reasons.
2. Matters Decided
(a) Case Overview and Procedural History
(a) Whether a Probationary Employment Relationship Existed
In light of (i) the fact that the probationary employment period was specified in the employment contract, (ii) the fact that the employer conducted weekly performance evaluations of the employee, and (iii) the absence of any dispute between the parties as to whether the relationship constituted probationary employment, it was determined that the employee was in a probationary employment relationship with the employer.
(b) Whether There Was a Refusal of Regular Employment (Dismissal)
Considering (i) that the employer appears to have explained to the employee, at the end of the probationary period, that it would be difficult to extend the employment contract, or recommended resignation; (ii) that the employee accepted the recommendation to resign and handwrote signatures on retirement-related undertakings and other documents and submitted them; and (iii) that the employer immediately accepted the employee’s retirement-related undertakings and, on the same day, filed a report of loss of insured status under employment insurance, it was determined that the employment relationship was terminated by mutual agreement after the employee accepted the employer’s recommendation to resign.
3. Gist of the Decision
(a) Summary of the Labor Relations Commission’s Reasoning
(a) Whether a Probationary Employment Relationship Existed
In light of (i) the fact that the probationary employment period was specified in the employment contract, (ii) the fact that the employer conducted weekly performance evaluations of the employee, and (iii) the absence of any dispute between the parties as to whether the relationship constituted probationary employment, it was determined that the employee was in a probationary employment relationship with the employer.
(b) Whether There Was a Refusal of Regular Employment (Dismissal)
Considering (i) that the employer appears to have explained to the employee, at the end of the probationary period, that it would be difficult to extend the employment contract, or recommended resignation; (ii) that the employee accepted the recommendation to resign and handwrote signatures on retirement-related undertakings and other documents and submitted them; and (iii) that the employer immediately accepted the employee’s retirement-related undertakings and, on the same day, filed a report of loss of insured status under employment insurance, it was determined that the employment relationship was terminated by mutual agreement after the employee accepted the employer’s recommendation to resign. /
[See More Related Decisions]
- “Expression of Intention to Resign (Resignation Remark Made by Telephone)” Unfair Dismissal Decision
- “Dismissal of Case (Non-Appearance at Hearing)” Unfair Dismissal Decision – Decision Date: – Case No.: Dismissed
- “Non-Formation of Hiring Commitment (Absence of Offer Letter)” Unfair Dismissal Decision – Decision Date: – Case No.: First-instance decision upheld
[Tags]
Unfair dismissal, termination during probation (acceptance of resignation recommendation), dismissal during probation, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is part of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ The previous article, “‘Grounds and Written Notice Requirement (Sales Position with Poor Performance)’ Unfair Dismissal Decision,” can be viewed in a new window.
※ A list of decisions related to termination during probation (acceptance of resignation recommendation) can be viewed together at “List of Decisions Related to Termination During Probation (Acceptance of Resignation Recommendation).”
※ Korean version of this case: Korean article
This case is a decision that was concluded by upholding the first-instance decision on the issue of “termination during probation (acceptance of resignation recommendation).”
Decision Committee: Central Labor Relations Commission 2025Buhae959 ○ ○ ○ Application for Re-examination for Remedy of Unfair Dismissal
2025.12.10 · Case Result: First-instance decision upheld
Key Issue Summary: (a)
1. Legal Implications
In this unfair dismissal case, the Labor Relations Commission dealt with issues arising from refusal of regular employment and acceptance of a recommendation to resign during a probationary period. It is a decision that helps in understanding the legal principles on probation and resignation as organized by Labor Law Firm Law&. The Central Labor Relations Commission focused its analysis on whether a probationary employment relationship had been established, and whether the refusal of regular employment at the expiry of the probationary period constituted a dismissal or a voluntary consensual resignation by the employee.
Ⅰ. Case Overview
The employee was hired under an employment contract that expressly stipulated a probationary period, and the employer conducted weekly performance evaluations during that period. As the end of the probationary period approached, the employer informed the employee that it would be difficult to extend the contract and recommended that the employee resign. The employee then handwrote signatures on a retirement-related undertaking and other documents and submitted them.
On the same day, the employer accepted the employee’s retirement documents and filed a report of loss of insured status under employment insurance. Thereafter, the employee filed an application with the Labor Relations Commission seeking a remedy, claiming that this constituted an unfair dismissal.
Ⅱ. Issues
The key issue in this case is:
“Where an employee working as a probationary employee signs a retirement undertaking at the end of the probationary period in accordance with the employer’s recommendation to resign, should this be viewed as an unfair dismissal resulting from the employer’s refusal to grant regular employment, or as a termination of the employment relationship by mutual agreement between the employee and the employer?”
Ⅲ. Summary of the Labor Relations Commission’s Reasoning
The panel in this case found that a probationary employment relationship had been established between the employee and the employer, given that the employment contract expressly stipulated a probationary period, that the employer conducted weekly performance evaluations of the employee during that period, and that there was no dispute between the parties as to the existence of a probationary employment relationship.
In addition, taking into account that the employer appears to have explained to the employee, after the expiry of the probationary period, that it would be difficult to extend the employment contract and recommended resignation; that the employee, in response, handwrote signatures on retirement-related undertakings and other documents and submitted them; and that the employer immediately accepted these documents and, on the same day, filed a report of loss of insured status under employment insurance, the panel concluded that the employee accepted the employer’s recommendation to resign and that the employment relationship was terminated by mutual agreement. Accordingly, it held that there was no separate dismissal (unfair dismissal by refusal to grant regular employment).
Ⅳ. Practical Points (From the Employee’s Perspective)
From the employee’s perspective, once an employment contract has been formed, even for probationary employment, refusal to grant regular employment in principle may constitute a dismissal, and if such refusal lacks just cause, the employee may seek a remedy for unfair dismissal. However, as in this case, where the employee, following the employer’s recommendation to resign, personally signs a retirement undertaking and the employer accepts the retirement on that basis, the Labor Relations Commission is highly likely to view this as a “mutual termination” and to deny the claim of unfair dismissal.
When you receive a recommendation to resign, you should avoid signing immediately and instead carefully consider whether your intention to resign is genuine, whether there is any coercion aimed at avoiding a dismissal, and whether you will be able to retract your decision later. It is advisable, where possible, to preserve a record of the circumstances of the recommendation (in writing, audio recording, etc.) and then consult with a professional.
Ⅴ. Practical Points (From the Employer/Company’s Perspective)
From the employer’s perspective, it is important to clearly set out in writing—such as in the employment contract, work rules, and probationary employment forms—the existence of a probationary employment contract, the length of the probationary period, and the evaluation method. As in this case, the more closely the contractual terms and actual operation (weekly evaluations) align, the more favorable it will be for recognition of a probationary employment relationship. However, if the employment relationship is terminated at the end of the probationary period simply by obtaining a resignation letter, the genuineness of the resignation, the presence of any duress, and whether it was intended to avoid a dismissal may later be contested. Therefore, it is necessary to retain objective evidence of the content and circumstances of the recommendation to resign and of the employee’s voluntary consent process.
Furthermore, even where the employer chooses to refuse regular employment during or at the end of the probationary period, it is helpful for preventing future disputes to verify whether the reasons are based on rational grounds related to the purpose of probation—such as the employee’s job suitability, competence, and attitude—and whether at least minimal procedures were followed to explain those reasons.
2. Matters Decided
(a) Case Overview and Procedural History
(a) Whether a Probationary Employment Relationship Existed
In light of (i) the fact that the probationary employment period was specified in the employment contract, (ii) the fact that the employer conducted weekly performance evaluations of the employee, and (iii) the absence of any dispute between the parties as to whether the relationship constituted probationary employment, it was determined that the employee was in a probationary employment relationship with the employer.
(b) Whether There Was a Refusal of Regular Employment (Dismissal)
Considering (i) that the employer appears to have explained to the employee, at the end of the probationary period, that it would be difficult to extend the employment contract, or recommended resignation; (ii) that the employee accepted the recommendation to resign and handwrote signatures on retirement-related undertakings and other documents and submitted them; and (iii) that the employer immediately accepted the employee’s retirement-related undertakings and, on the same day, filed a report of loss of insured status under employment insurance, it was determined that the employment relationship was terminated by mutual agreement after the employee accepted the employer’s recommendation to resign.
3. Gist of the Decision
(a) Summary of the Labor Relations Commission’s Reasoning
(a) Whether a Probationary Employment Relationship Existed
In light of (i) the fact that the probationary employment period was specified in the employment contract, (ii) the fact that the employer conducted weekly performance evaluations of the employee, and (iii) the absence of any dispute between the parties as to whether the relationship constituted probationary employment, it was determined that the employee was in a probationary employment relationship with the employer.
(b) Whether There Was a Refusal of Regular Employment (Dismissal)
Considering (i) that the employer appears to have explained to the employee, at the end of the probationary period, that it would be difficult to extend the employment contract, or recommended resignation; (ii) that the employee accepted the recommendation to resign and handwrote signatures on retirement-related undertakings and other documents and submitted them; and (iii) that the employer immediately accepted the employee’s retirement-related undertakings and, on the same day, filed a report of loss of insured status under employment insurance, it was determined that the employment relationship was terminated by mutual agreement after the employee accepted the employer’s recommendation to resign. /
[See More Related Decisions]
- “Expression of Intention to Resign (Resignation Remark Made by Telephone)” Unfair Dismissal Decision
- “Dismissal of Case (Non-Appearance at Hearing)” Unfair Dismissal Decision – Decision Date: – Case No.: Dismissed
- “Non-Formation of Hiring Commitment (Absence of Offer Letter)” Unfair Dismissal Decision – Decision Date: – Case No.: First-instance decision upheld
[Tags]
Unfair dismissal, termination during probation (acceptance of resignation recommendation), dismissal during probation, Labor Law Firm Law&, large labor law firm, Samseong-dong labor law firm, Samseong Station labor law firm, Gangnam labor law firm
※ This article is part of the “Unfair Dismissal Decisions” series by Labor Law Firm Law&.
※ The previous article, “‘Grounds and Written Notice Requirement (Sales Position with Poor Performance)’ Unfair Dismissal Decision,” can be viewed in a new window.
※ A list of decisions related to termination during probation (acceptance of resignation recommendation) can be viewed together at “List of Decisions Related to Termination During Probation (Acceptance of Resignation Recommendation).”
※ Korean version of this case: Korean article
